A blog on eminent domain, land-use, and related matters.

Monthly Archives: February 2010

We had occasion to comment on recent revelations that the actual, as opposed to projected, cost of the proposed high-speed, Los Angeles to San Francosco rail line appears to be higher than its planners’ estimates. See http://gideonstrumpet.info/?p=371 Now there is more on that subject. To quote the lead paragraph in an article in today’s Los Angeles Times (Rich Connell and Dan Weikel, Some Fear California’s High-Speed Rail Won’t Deliver on Early Promises, February 28, 2010):

“Despite a new $2.5 billion infusion of federal economic stimulus funding, there are intensifying concerns — even among some high speed rail supporters — that California’s proposed bullet train may not deliver on the financial and ridership promises made to win voter backing in 2008.”

Surprise, surprise. Don’t that beat all?

“New inflation-adjusted construction figures show that outlays needed to build the first 520-mile phase of the system have climbed more than 25%, from $33.6 billion to $$42.6 billion.”

State Senator Alan Lowenthal, a supporter of high-speed rail and chairman of the Senate Transportation and Housing Committee, is quoted as saying with remarkable understatement, “This just smells funny.” Yes indeed, Senator, it sure does, because whatever else may be true, we have not had a 25% rate of inflation since 2008 — though at the rate things are going, that level of inflation may yet come to pass in the future.

Also, the federal Government Accountability Office has published a study indicating that rail cost and and patronage projections around the world, including on some high-speed lines, have tended to be overly optimistic. And so it is here. So to maintain a semblance of credibility, the high speed rail mavens are now suggesting that the cost of tickets for a Los Angeles to San Francisco trip will have to be doubled, with a predictably negative impact on ridership figures, because at those prices rail fares will be up there in the same bracket as air fares.

And so it goes. There is nothing new about all that. We are reminded that way back in the 1950s a California Highway Commissioner wrote that the actual cost of highway right-of-way acquisition ran consistently some 30% higher than the highway planners’ optimistic projections. That much, it would appear, has not changed, though this time around, it may be more than 30%. The cost of the high-speed-rail link between Los Angeles and Anaheim has nearly doubled. Why? Because as the Times also reports, shoehorning the high-speed rail route into the existing rail corridor — a necessity in populated areas traversed by the high-speed train route — is going to pose serious engineering problems.

Of course, a realistic estimate of the actual cost of such projects only becomes known after the right-of-way acquisition begins and real appraisals have to be made in contemplation of the coming eminent domain cases where the rubber meets the road, as a tire commercial used to put it a while back. So stay tuned, folks. There’s more to come on this subject. Much more.

A recent decision by the U.S. Court of Federal Claims brings to an end – at least at the trial court level – the 14-year fight by rancher Wayne Hage who sued the U.S. government in 1996 for the taking of his water rights, and ditch rights-of-way over federal land that he was using under a federal permit for cattle ranching.

The feds decided that this land would be just dandy for elk which they imported and turned loose. The problem was that there was not enough water and forage for both types of critters, so the feds sharply limited the numbers of cattle that Hage was allowed to run on that land.

The Hage inverse cdondemnation lawsuit was what you might call a western saga that has been running for 14 years so far. We won’t attempt to go through it all in detail. For that we suggest you read Wayne Hage’s book Storm Over the Rangelands: Private Rights in Federal Lands (1989).

In this one, the court corrected its former judgment and found that additional items of damages had to be added to the earlier award in favor of Hage (90 Fed.Cl. 388).The court awarded another$84,532 for ditches and $67,532 for pipelines. Bottom line: $4,372,355.20, plus interest.

Justice at last. Too bad that Wayne Hage was not able to live long enough to see it and to savor his victory.

We just came across an article (Nicole Gelinas, Eminent Domain as Central Planning, City Journal, Winter 2010, Vol. 20, No. 1 ( http://www.city-journal.org/2010/20_1_eminent-domain-abuse.html ). It reviews the recent controversial New York condemnations (the Goldstein and Kaur cases, as well as the upcoming Willets Point redevelopment project), and concludes that the conceit of central planning lies at the heart of the problem because central planners’ endeavors are not as efficient and effective as those of the free market. Strangely enough, that was the view voiced by Justice Stevens who, reacting to the uproar that followed his handiwork in the Kelo case, expressed a similar personal belief in his speech to the Nevada Bar Association, even though he explained that his ruling in Kelo was compelled by precedent — a sort of a the-devil-made-me-do-it defense.

The City Journal article is interesting and written for the intelligent layman rather than for eminent domain mavens. We recomment it to our readers. But as Zsa Zsa Gabor put it, “Nobody’s perfect, dollink,” so it may be appropriate to say something about it. To the extent the term “central planning” conjures up a vision of some sort of expert body that is devoted to community planning, and makes its planning recommendations after careful deliberation, we beg to differ. This vision reminds us of the words of the late, lamented Richard Babcock, in his time the preeminent land-use lawyer from Chicago, who derided the idea that land-use decisions are made by a group of geniuses, with an average IQ of 150, who sit around and debate public policy with an eye on deciding what’s best for the community. Alas, reality is quite different.

Many — possibly most — redevelopment decisions are made by individual developers — New York’s Bruce Ratner being the proverbial Exibit A — who identify an urban area that seems to them to be a likely spot for construction of a lucrative project, and then proceed to persuade the local government to get the land in question for them. It is not unusual to see cases where a developer approaches a land owner and offers to buy the latter’s property, but when negotiations fail to produce a deal, the local municipality miraculously declares the subject property to be “blighted,” and takes it for redevelopment by — who else? — the developer who was unable to acquire it in a consensual transaction.

That may indeed be a form of “planning.” But it isn’t central, and no planning at all in the real sense of that word. It is simply an individual decision made by the developer in pursuit of his own economic self-interest on an ad hoc basis. The resultng project is usually nothing more than a private venture that sometimes fails, as do other economic ventures. Redevelopment, like other municipal land-use decisions, is the product of the rough and tumble world of urban politics — a process that is not pretty. But alas, that’s how revelopment laws and sausages are made. If you want to see a good example of this messy reality, read the Minnesota Supreme Court’s decision in Johnson v. Minneapolis, 667 N.W.2d 109 (Minn 2003), and its federal-court precursor Societe Generale Immobiliere v. Minneapolis Community Development Authority, 44 F.3d 629 (8th Cir. 1984).

Central planning was involved in the old-style redevelopment of the 1960s, when cities took large swaths of land, razed it and then tried to interest developers in building on it — as was the case in the well known Washington, D.C. project that gave us the wretched Berman decision. But as old timers who read this may recall, even if successful, those projects were spectacularly inefficient. They gave rise to the phenomenon of large tracts of razed urban land sitting vacant for years or even decades, before it was built out, such as “Hiroshima Flats” in St. Louis, and “ragweed acres” in Detroit. The Bunker Hill redevelopmeny project here in Los Angles, was set into motion in the late 1950s, but even today, there is still some vacant land up there. Indeed, even in Berman itself it took forever for the redevelopers to build out the project. We lived there in the early 1960s, ten years after Berman came down, and by then the project area was still largely vacant land.

That is why government switched to today’s TIF-financed style of redevelopment that is usually not undertaken until a redeveloper is identified, and a deal is made.

We offer the following quotation from the opinion of the U.S. Court of Federal Claims, in Petro-Hunt LLC v. United States, 90 Fed.Cl. 51, 52-53 (2009), per Allegra J.

It aptly describes the conundrum faced by property owners seeking to recover just compensation for the taking of their property:

Scylla and Charybdis were the treacherous sea monsters of Greek mythology, who lurked on the opposing sides of the Straits of Messina between Sicily and Calabria. According to lore, these nightmarish creatures were strategically placed so as to pose an inescapable threat to passing ships — sail too close to the peninsula and Scylla would seize and devour your crew with her six serpentine heads; compensate, by navigating closer to the island of Sicily, and face the loss of your entire ship in the maelstroms belched from Charybdis’ gaping mouth. On the advice of Circe, Odysseus chose to sail closer to Scylla — costing him six of his men, but leaving his ship intact to sail another day.

Some might say that, in Federal takings law, these fictional leviathans have been replaced by the doctrines of ripeness and limitations, both of which must successfully be navigated by claimants seeking to bring their cases before this court. File too early and risk having your case dismissed as premature; delay too long, however, and face the loss of your entire suit, as time-barred. See Bayou Des Familles Dev. Corp. v. United States, 130 F.3d 1034, 1037-38 (Fed. Cir. 1997). In some situations, litigants may find themselves between a rock and a hard place (a veiled reference, as it turns out, to the twin monsters of old).

One of the pillars of eminent domain law is that the courts do not inquire into a condemnor’s determination of necessity for eminent domain takings. The U.S. Supreme Court first reasoned that private-to-private takings can be justified on grounds of absolute public necessity. It said that it would allow such takings (as in Clark v. Nash and Strickley v. Highland Boy Gold Mining Co.) because otherwise the “foundations of civilization” could not be laid. We kid you not. For a fuller discussion of this point, see 33 Pepperdine Law Review at 350-352.

But a few years later, in Bragg v. Weaver the court announced that necessity is not a part of federal eminent domain law.In other words, when the owner challenges a taking of his property, he is told that taking it and devoting it to the “public purpose” du jour is justified as a matter of great necessity, but when he wants to challenge that necessity, he is told that necessity is no part of federal eminent domain law.

In the state courts, the handling of necessity varies. It ranges from a relatively benign rule in Florida whose courts do allow some inquiries into necessity, all the way to California whose supreme court ruled in People v. Chevalier that in spite of the fact that the requirement of necessity is imposed by statute, necessity for a taking is altogether non-justiciable, not even where the resolution of necessity is procured by fraud, bad faith and abuse of discretion. The California court never retreated from that extremist position, but in 1976 the California legislature changed the rule to hold that the determination of necessity is not conclusive where the resolution of necessity is procured through “gross abuse of discretion” or bribery. Even then, the resolution is not void, but only subject to judicial review.

In most other jurisdictions necessity may be inquired into if the condemnee can demonstrate that the decision to take by eminent domain is the product of bad faith on the part of the condemnor.

We were inspired to reflect on all this stuff by the Los Angeles Times editorial of February 22, 2010 (Redefining Safety at LAX), dealing with the necessity for increasing the separation between the two north runways at LAX. It seems that the folks at the FAA are concerned with the safety of these runways. “The Federal Aviation Administration had been demanding for decades that the airport address the runways’ design flaws, and five independent studies on airport safety concluded that they were too close together for comfort.” What does the government do in a case like that when faced with the ire of the NIMBY folks whose homes would be impacted by this project? Find another study. And that’s just what the LAX folks did. They found a NASA study performed by an “academic panel” and – mirabile dictu! – that study concludes that things aren’t so bad because the probability of planes colliding is small.

Far be it from us to challenge the wisdom of the NASA folks, but it seems to us that were such an extremely unlikely collision to occur, NASA’s wisdom would be cold comfort to the passengers in question and to their families. Even the NASA study concedes that increasing runway separation by 340 feet would lower the risk by 55%.For once, we find ourselves in agreement with the Times which concludes:

“We’re as puzzled as anybody about how airport experts could come to such widely differing conclusions on safety, and we’re less convinced about the necessity of separation [of the two north runways] than we were two years ago. But we’re certain that the Board of Airport Commissioners should not allow this perplexing study to be the last word on the north airfield and its troubles.”

So what we have here is a situation in which LAX could go either way, with both ways generating significan risks of future litigation over direct or inverse property takings. Will the city proceed with increasing the separation between the north runways? Will it exercise its power of eminent domain to take the homes that border on the north edge of that runway? Or will the city just increase the runway separation and take its chances on another inverse condemnation and nuisance lawsuit by LAX’s neighbors, as in the days of yore? See Greater Westchester Homeowners Association v. City of Los Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733 (1979).

One way or the other, it seems reasonable that in the fullness of time this situation will produce gainful employment for local eminent domain and inverse condemnation lawyers.

A recent opinion of the Pennsylvania Commonwealth Court informs us that in the case of Condemnation of Property Located in Lower Windsor Township, 986 A.2d 190 (Pa.Cmwlth. 2009), the county took Lauxmont Holdings’ land and deposited $2,000,000. After the Board of Viewers awarded $10,500,000, the county said “Oops,” got a new lawyer and new appraisers who came up with a range of values of $7,500,000 to $7,950,000. The matter then went to court where the jury awarded $17,250,000, which the county did not contest on appeal.

According to our calculator, that award comes to over eight times the original county offer.

Now get this. Though the county’s new counsel concluded that the original deposit was “gross undercompensation,” the judges on the appellate court, delicate souls that they are, characterized it as “an inaccurate appraisal.” Reminds us of the time in high school when a kid was asked to provide a synonym for “incapacitated, ” and he came up with “decapitated.”

A while back, on January 27, 2010, (http://gideonstrumpet.info/?p=372 ) we had occasion to blog on the subject of judicial activism. Our point was that whereas liberals go on ad nauseam about the wickedness of judicial activism when conservative judges engage in it, they see nothing wrong with it when the shoe is on the other foot.

Here is another data point on that topic. The New York Times carries a puff piece (front-page, above the fold, no less) (William Glaberson, Top Judge Sets Liberal Course For New York, February 18, 2010, p. A1)extolling the virtues of Jonathan Lippman, the comparatively new Chief Judge of the New York Court of Appeals (that state’s highest court). And what might those virtues be?

“[Lippman] has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show.”

Surprize, surprize.

“The Lippman court has … shifted ground on worker injury, suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering.”

Judge Lippman is quoted as saying that he is “a result-oriented person.” Oops! And here we thought that judicial result-orientation is a no-no because it is at war with the concept of the rule of law that in theory is supposed to lead the courts to results dictated by the impartial application of legal doctrine to the facts before them, not the results personally favored by individual judges. But what do we know? Judge Lippman says that being result-oriented is “Me meeting my constitutional responsibility in the best way that I can.” So there!

But don’t expect the familiar liberal panjandrums like UCI’s law school Dean Erwin Chemerinsky (who recently waxed wroth in the pages of the Los Angeles Times, denouncing the “judicial activism” of the U.S. Supreme Court, in connection with its recent Citizens United decision), to rise up in righteous indignation to denounce “result orientation” and “judicial activism” in this case, as he did when he thought that conservative judges were doing the same thing. It evidently all depends on whose ox winds up turning on the spit.

So like we said in our earlier post, judicial activism is a fact of life. It is as American as apple pie, and has been ever since the days of John Marshall. So maybe politicians of both stripes as well as the usual academic suspects will stop kvetching about it when a particular decision that changes the law is not to their liking and concentrate on the quality (or lack thereof) of judicial decision-making.

Of course, it would be better if courts spent more time on resolution of disputes and interpretation of laws through application of legal doctrine, and less on thinly disguised acts of governance. But as long as they do the latter, and take pride in it, they can expect criticism from the people who, not unreasonably, feel that those who would govern them should be accountable to them, the familiar cries of “judicial independence” notwithstanding. As one of our favorite Judges, Alex Kozinski of the U.S. Court of Appeals once put it: “When we act like politicians, we will be treated like politicians.” And that, Your Honors, though not the best of judicial worlds, is how the democracy cookie crumbles.

That’s not quite the end of the story because this blog is supposed to be about eminent domain, isn’t it? And with the New York Court of Appeals hip-deep in controversial eminent domain litigation, you would think that this topic would deserve some mention by the New York Times, along with torts, crimnal law, and all that other good stuff that quickens the liberals’ pulse. But no. You won’t find so much as a mention of this subject in this article. Sort of like that Sherlock Holmes story in which the plot turned on the fact that the dog didn’t bark in the night.

Los Angeles Daily Journal

February 18, 2010, p. 6

Requiem for a Parking Lot

By Gideon Kanner

There they go again. With rhythmic regularity of the tides, the Los Angeles Times regales us with stories of assorted legal misdeeds said to be perpetrated by the government of Israel upon the long-suffering Arab population in connection with land-use. But as noted in some of my earlier columns, upon analysis, the “atrocity” du jour can turn out to be a garden-variety land-use dispute in which the Israelis conduct themselves the same as we do over here.

Case in point, a recent lamentation by Saree Makdisi, a professor of English at UCLA (“A Museum of Tolerance We Don’t Need“, L.A. Times, Feb. 12, 2010). In it, Makdisi deplores the fact that the Israelis are about to build a local branch of the Museum of Tolerance on a three-acre site in West Jerusalem that was once used as an Arab cemetery, but as it turns out, has been a parking lot for years. His complaint is that this is being done in disregard of the sensibilities of the local Arab population.

Putting legalities aside for the moment, this complaint turns out to be breathtaking chutzpa on Makdisi’s part because in 1948, when the Jordanian Arab Legion crossed the Jordan River, invaded Israel, and conquered East Jerusalem’s Jewish Quarter, the Arab legionnaires desecrated Jewish cemeteries, uprooted grave stones and used them to build latrines, with no concern shown for the sensibilities of the Jewish population that had been living there for centuries.

In this instance, the Los Angeles Times ran a counterpoint op-ed by Rabbi Marvin Hier (“A Proper Site For a Museum of Tolerance,” L.A. Times, Feb. 12, 2010) from which we learn that the “cemetery” in question has been abandoned for a long time, and has been used for years as a municipal parking lot, without a peep of protest from local Arabs or anyone else. In fact, in 1946 local Arabs proposed to build a Muslim university on it. Hier notes that the Israel Supreme Court stressed in its opinion rejecting a legal challenge to the construction of the museum, that “for almost 50 years the compound has not been a part of the cemetery…and it was used for various public purposes,” adding, “During all those years no one raised any claim, on even one occasion, that the planning procedures violated the sanctity of the site, or that they were contrary to the law as a result of the historical and religious uniqueness of the site…. For decades this area was not regarded as a cemetery by the general public or by the Muslim community…. No one denied this position.”

It may be useful to take a look at what our law has to say about reuse of cemeteries. For one thing, cemeteries are routinely taken by eminent domain for other uses. There is even an old English vaudeville song entitled “They’re Movin’ Father’s Grave to Build a Sewer” – you can hear a recording of it by the Clancy Brothers.

Even as I write, the ink has barely dried on an Illinois court decision allowing Chicago to take a cemetery for the expansion of O’Hare Airport (Art Barnum, “Chicago Wins Cemetery Land for New O’Hare Runway,” Chicago Tribune, Feb. 8, 2010). But you won’t find any lachrymose Los Angeles Times op-eds decrying the affront to the “sensibilities” of those Illinois folks. Closer to home, California has litigated this business up one side and down the other, in state and federal courts, so that our law is clear that though cemetery land may be consecrated, it is not immune to being taken for other uses.

For example, California Health & Safety Code Section 8560 prohibits the taking of cemetery land for highways. But that has not stopped CalTrans from acquiring condemned cemetery land for a freeway. You doubt it? Then check this out. Back around 1960, CalTrans decided to put Interstate 5 through the Eden Memorial Park cemetery in the North San Fernando Valley. At first, it looked like the law might actually be followed when the Court of Appeal held that the Legislature was free to allow or disallow takings for any public purpose it saw fit, and therefore CalTrans was powerless to take any part of the cemetery land for a freeway. (Eden Memorial Park Assn. v. Dept. of Public Works (1961) 189 Cal.App.2d 421). The California Supreme Court denied hearing, and that seemed the end of that. Or was it?

Having once obtained an injunction against the construction of a freeway (Sherwood v. Bradford, (S.D.Cal. 1965) 246 F.Supp. 550) I claim a modest insight into such matters, and I surmise that at first, the consternation at CalTrans following the Eden Memorial ruling must have rivaled the reaction of European monarchs when they realized that – gasp! – they did not actually rule by divine right. But after recovering from the initial shock of hearing a California court say “No,” the CalTrans folks figured out that there is more than one way to skin a cat. So they went whining to the feds, and Uncle Sam rode to the rescue. Before you could say “isn’t CalTrans a creature of state law, and as such lacks the power to acquire land condemned in disregard of state laws?” – the feds filed a condemnation action in federal court, and relying on 23 U.S.C. Section 107 (allowing federal takings of land for federally financed state projects), took the right of way right through Eden Memorial Park. United States v. Eden Memorial Park Assn. (9th Cir. 1962) 432 F.2d 432 (right to take), and (9th Cir. 1965) 350 F.2d 933 (valuation). Was that the end of it? Not quite.

The property owners sought to enjoin state officials from accepting title from the feds, arguing that this was a subterfuge, but the California Supreme Court ruled against them, thus de facto holding that CalTrans was free to violate California law, as long as it used the feds as its stalking horse. Eden Memorial Park Assn. v. Dept. of Public Works (1963) 59 Cal.2d 412.

By now, you may think that I am telling you more about takings of cemetery land in California than you ever wanted to know, whereas this column was supposed to be about the Middle East. So let’s get back to the point, which is that Makdisi’s lamentations about the Israelis’ effort to build a museum on a Jerusalem parking lot, fail to note that what he depicts in a California newspaper as Israeli wickedness is fully consistent with our law, and – like it or not – no atrocity at all. Remember that in the Eden Memorial Park litigation, the owners had a stronger claim than those Jerusalem Arabs because they owned a cemetery, not a parking lot, and relied on a statute that explicitly forbade the taking of cemetery land for roads. In contrast, there appears to be no such counterpart legislation over there, and a parking lot is, well, a parking lot, even if it once served as a cemetery. More important, the Jerusalem controversy is not even a condemnation case – the land in question is already publicly-owned and has been consensually conveyed to the museum.

That leaves one loose end. Though Makdisi does not raise it in his op-ed, what about the fact that in that Israeli controversy the beneficiary of the new land use is a privately owned and operated museum? Would that make a difference over here? No, it would not. See County of Los Angeles v. Anthony (1964) 224 Cal.App.2d 103 (approving the taking of a home for a proposed, privately-owned museum).

And so, when you see a Los Angeles Times op-ed deploring land-use related controversies in Israel, it might be prudent to take it with a large grain of salt. “Horror stories” of that kind regularly masquerade as Los Angeles Times op-eds, but upon examination can turn out to be distorted depictions of run-of-the-mill acts of land-use governance, rather than some sort of exotic atrocities. As the late Senator Pat Moynihan once put it: everybody is entitled to his own opinion, but not to his own facts.

Gideon Kanner is professor of law emeritus at the Loyola Law School, and of counsel to Manatt, Phelps & Phillips.

A while back we made some unkind observations about folks in Hawaii who talk a good game about energy conservation and carbon footprint reduction, but in the meantime try to make a buck by operating air-conditioned hotels and stores with doors and windows wide open. Go to http://gideonstrumpet.info/?p=268 . It turns out that those Sandwich Islanders are not alone.

The Wall Street Journal brings us a front-page story about energy conservation (or is it energy consumption?) in Boulder, Colorado, a city that prides itself on being oh-so environmentally conscious. (Stephanie Simon, Even Boulder Finds It Isn’t Easy Going Green, February 13-14, 2010, p.A1).Being a trendy university town, Boulder does its best to keep up to date, environmentwise. Over the years, it has imposed special taxes, and adopted a variety of energy-saving policies, but it turns out that, in the Wall Street Journal’s words, “The hitch is getting [Boulder] residents to move from philosophical support to concrete action.”Our favorite is a Boulder gentleman who “…considers himself quite green: He drives a hybrid, recycles, [and] uses energy-efficient bulbs. But he refuses to practice the most basic of conservation measures: Shutting the doors to his downtown art galley when his heating or air conditioning is running.” He is quoted as saying: “I’m old school. I’ve always been taught that an open door is the way to invite people in.”

As a result of such attitudes, “…Boulder’s carbon emissions edged down less than 1% from 2006 to 2008, the most recent data available.” [¶] By the end of 2008, emissions here were 27% higher than 1990 levels. That’s a worse showing than the U.S. as a whole, where emissions rose 15% during that period.”It would seem that there is a moral in here some place, and, having confidence in our readership, we are sure that you will discern it. Evidently, things have not changed much (or at all) since 1979, when MIT Professor Bernard J. Frieden wrote a wonderful book entitled “The Environmental Protection Hustle” (MIT Press 1979), where he aptly concluded: “In suburban America preserving the environment usually means preserving the social status quo as well.” Id. at p.129.

So if you want to put to a test the environmental sincerity of our betters, next time you see a trendy art gallery in an upscale community, with its front door wide open as the air conditioning inside goes full-tilt, try closing it and see what reaction you get from the proprietor.